11.  The applicant was born in 1956 and lives in Bucharest.
12.  In 1985 the applicant joined the Bucharest police force. In 1995 he became an officer in the criminal investigation department of Bucharest police section no. 5.
13.  On his application form, the applicant stated that on 16 July 2003 he was informed by his hierarchical superior that he was required to go to the National Anti-Corruption Prosecution Service headquarters (“the NAP”) for questioning.
In his written observations to the Grand Chamber of 10 February 2011 the applicant stated that at about 5 p.m. on 15 July 2003, while he was on leave, a colleague from Bucharest police section no. 5 informed him by telephone that he was required to attend the NAP on the following day; he was not given any additional information.
14.  At about 8.45 a.m. on 16 July 2003 the applicant met twenty-five colleagues in the courtyard of the NAP headquarters. They were then asked to enter the building at about 9 a.m. At the entrance, a police officer entered the particulars of the applicant and his colleagues in a logbook.
15.  The applicant and his colleagues were taken to a meeting room on the ground floor of the building. Shortly afterwards V.D., a military prosecutor, entered and asked them to make written statements on the circumstances in which they had met three individuals: I.D., S.B. and M.I. The prosecutor then left the room and returned at approximately 9.30 to 9.40 a.m. to collect the statements. After reading them, the prosecutor allegedly began to threaten the applicant and his colleagues with pre-trial detention. The prosecutor left the room again. Four or five masked and armed gendarmes burst in. One of the gendarmes asked the applicant and his colleagues to take out their mobile phones and to put them on a table next to another gendarme. They were also informed that they were allowed to leave the room to go to the toilet or smoke a cigarette only individually and if accompanied by an armed gendarme.
16.  At about 3 p.m. the applicant and his colleagues asked for permission to leave the room to purchase water and food. After obtaining the prosecutor’s permission, a gendarme collected money from the police officers and went to buy the requested groceries.
17.  Throughout this time, the applicant was not assisted by either a lawyer of his own choosing or an officially appointed lawyer. He was unable to contact anyone outside the building.
18.  On the application form, the applicant stated that he had managed to contact a lawyer at around 8 p.m.
In his written observations to the Grand Chamber, the applicant alleged that towards 11 p.m., he and one of his colleagues had been taken to the prosecutor’s office on the first floor. The prosecutor, another man and two women were present in the office. The prosecutor allegedly suggested to the applicant that he state that the commanding officers at Bucharest police section no. 5 were guilty of corruption. He added that in exchange, the applicant would not be placed in pre-trial detention and would be able to see his family again soon. The applicant asked for assistance from a lawyer of his choosing. The prosecutor replied that the two women present were officially appointed lawyers and asked him to select one of them to assist him. The applicant refused. He claimed that the prosecutor began to “insult him” and to threaten that if he did not cooperate, he would be placed in detention and would be forbidden family visits. He was taken out of the office by a gendarme, who was instructed to prevent him from speaking to anyone and from going to the toilet without the prosecutor’s permission.
At the public hearing on 30 March 2011 the applicant stated that at an unspecified time his family, who knew that he was to go that day to the NAP and who had not seen him come home, had contacted the lawyer C.N., who asked his colleague, Mr Cus, to assist the applicant at the prosecution service premises. Mr Cus arrived at 10 p.m. and was allowed to meet with the applicant.
19.  At about 1.15 to 1.30 a.m. on 17 July 2003 the applicant was again taken into the prosecutor’s office. The prosecutor filled in a pre-printed form setting out the charges against the applicant and read it to him. In response, the applicant stated that he did not acknowledge the acts of which he was accused and that he stood by his initial statement. The applicant signed the form in the presence of an officially appointed lawyer, Ms M.S. The prosecutor also served on him a warrant for his pre-trial detention, issued on 16 July 2003, which mentioned that his detention had been ordered for three days, namely from 16 to 18 July 2003.
20.  At about 1.40 a.m., in the presence of Mr Cus, the lawyer chosen by the applicant, the prosecutor informed him of the order for his pre-trial detention. He also outlined to the applicant the evidence against him in support of his detention, namely statements by his colleagues. The order was based on Article 148 § 1 (h) of the Code of Criminal Procedure (“the CCP”). Referring to the relevant legal texts, the prosecutor indicated that the acts of which the applicant was accused amounted to the offences of criminal conspiracy, accepting bribes and aiding and abetting aggravated theft. The relevant part of the order was worded as follows:
“On an unspecified date in 1999 or 2000, a date that will be determined precisely [at a later stage], [the applicant], along with several colleagues from police section no. 5, caught several persons in the Bucureştii Noi district in the act of transporting in a Dacia van more than two tons of petrol that had been siphoned from pipelines. They then asked for and received the sum of 20,000,000 lei from S.B. and M.I. in exchange for not opening a criminal investigation against them and allowing them to continue their unlawful activity.
The fact that the suspect/accused committed these criminal acts is proved by the following evidence:
- witness statements;
- records of confrontations;
- statements by the accused persons;
- audio recordings;
- photographs;
- records of photo-based identification procedures.
Given that the conditions laid down in Article 148 § 1 (h) CCP have been met, namely that the offence committed is punishable by between four and eighteen years’ imprisonment and that the accused’s release would pose a threat to public order and to the conduct of the investigation in this case, since the accused is a police officer and could use this fact to influence the persons who are to be questioned;
On the basis of Article 136 § 5, Article 146 § 1, Article 148 § 1 (h), Article 1491 and Article 151 CCP [the prosecutor] decides that:
The suspect/accused is to be held in temporary pre-trial detention ... for a period of three days;
Pursuant to Article 146 § 3 and Article 1491 § 3 CCP, the detention referred to above shall commence at 10 p.m. on 16 July 2003 and end at 10 p.m. on 18 July 2003.
A warrant for temporary pre-trial detention will be issued ... from 16 July 2003 ...”
21.  At about 2.30 a.m. the applicant was taken to a room in the basement of the building where thirteen other colleagues were present. Shortly afterwards he was transferred to Rahova Prison.
22.  During the autumn of 2002 the NAP was informed of thefts of petroleum products from Petrotrans S.A. pipelines on the outskirts of Bucharest, committed in close collaboration with gendarmes and police officers. The questioning of several individuals on 9 and 11 July 2003 and photographic identification revealed the applicant’s involvement in the operation. The prosecutor responsible for the case, V.D., decided to summon around fifty people to give evidence on 16 July 2003.
23.  On 15 July 2003 the applicant and sixteen police colleagues were summoned at their workplace (Bucharest police section no. 5) to appear before the NAP in order to make statements for the purpose of a criminal investigation. The head of police of the 1st District of Bucharest was also informed so that he would be aware of the police officers’ absence from work on the following day and in order to ensure their presence at the NAP.
24.  At 9 o’clock the following morning the applicant and his colleagues went to the NAP premises. The military prosecutor V.D. greeted them in a room on the ground floor of the building and informed them that they were to be questioned in the context of a preliminary investigation (acte premergătoare) into their suspected involvement in the fraudulent removal of petroleum products from oil pipelines. All of the police officers verbally denied any involvement in such activity, but agreed to make a written statement on the subject. As a result, they received a ten-point questionnaire which they answered on a plain sheet of paper. During this period the prosecutor left the room and went to his office, on the first floor of the building, to continue procedural formalities with regard to other individuals involved in the case.
25.  Towards 12 noon, when all of the officers had finished writing their statements, the prosecutor returned to the room and informed them that, by a decision of the same day, a criminal investigation had been opened in the case against ten of the police officers, including the applicant, for accepting bribes, aiding and abetting aggravated theft and criminal conspiracy. The other seven police officers were free to leave the NAP premises.
26.  The prosecutor asked the ten police officers concerned to make new statements and to take part in confrontations with other persons. He also informed them that they were entitled to be assisted by counsel of their own choosing. Some of the police officers contacted lawyers, while the prosecution service asked the Bucharest Bar to ensure that lawyers could be officially appointed for the others, including the applicant.
27.  The applicant waited voluntarily in the NAP premises in order to have his legal situation clarified. He was not obliged to stay there, and was free to leave the premises at any point in order, for example, to purchase water or cigarettes; indeed, two police officers, A.A. and G.C., left that day and did not return.
28.  The applicant was at no time supervised or guarded. Gendarmes were present in the NAP premises on that day purely for the purpose of maintaining order. Furthermore, there was no separate entrance or special room for persons placed in police custody or in pre-trial detention.
29.  At about 1 or 2 p.m., after their chosen lawyers (for five of the police officers) or officially appointed lawyers had arrived at the NAP headquarters, the prosecutor began questioning each of the officers in turn. This process lasted three to four hours.
30.  At an unspecified time while being questioned, the applicant, assisted by M.S., an officially appointed lawyer, added to his initial statement made on a plain sheet of paper, confirming that he was a colleague of officers C.D. and M.G.M. and that he had a normal relationship with them. On that occasion, the prosecutor noted on the sheet that the initial statement had been made at 10 a.m.
31.  At an unspecified time the applicant made a new statement in the presence of the same officially appointed lawyer, this time on a pre-printed form bearing the words “suspect/accused”. The form indicated that the applicant had been informed of the acts of which he was accused and their legal classification, and of his procedural rights. A record was accordingly drawn up and signed by the prosecutor, the applicant and the officially appointed lawyer.
32.  The prosecutor subsequently carried out several confrontations between suspects, accused persons and witnesses.
33.  At 10 p.m., by an order, the prosecutor decided to charge several police officers, including the applicant, with accepting bribes, aiding and abetting aggravated theft and criminal conspiracy.
34.  At the same time, the prosecutor decided, by an order, to place the applicant in temporary pre-trial detention. A warrant for pre-trial detention was issued and served on him at an unspecified time. During the night of 16 to 17 July 2003 the applicant was transferred to Rahova Prison.
35.  The Government observed that the logbooks recording persons entering and leaving the NAP premises in 2003 had been destroyed well before the present case had been communicated on 19 February 2009, the retention period being three to five years, in accordance with the legal provisions in force.
36.  On 17 July 2003, on the basis of Article 148 § 1 (c), (d) and (h) CCP, the NAP asked the Bucharest Military Court to extend by twenty‑seven days the pre-trial detention of the applicant and his thirteen co-accused, starting on 19 July 2003.
37.  At 10 a.m. on 18 July 2003 the applicant was taken to court. He alleged that his lawyer was given access to the case file only while the prosecution was presenting its request for an extension of the pre-trial detention. The Military Court ordered that the case be referred to the Military Court of Appeal, which, in view of the military rank of one of the co-accused, had jurisdiction.
38.  By a judgment delivered in private on the same date, the Military Court of Appeal, sitting as a single judge, granted the prosecution’s request and extended the pre-trial detention of the applicant and the other co-accused by twenty-seven days.
39.  The Military Court of Appeal held, having regard to the case file, that there was evidence that the accused had committed the offences of criminal conspiracy, taking bribes, aiding and abetting aggravated theft and inciting others to give false evidence. It held that it was necessary to place the accused in pre-trial detention on grounds of public order, noting that they could influence witnesses and that they had taken steps to evade criminal proceedings and execution of the sentence. Lastly, it noted that the complexity of the case, the large number of accused and the difficulty in obtaining evidence were also to be taken into account.
40.  On the same day, a warrant for pre-trial detention identical to that of 16 July 2003 was issued in respect of the applicant.
41.  The applicant and his co-accused lodged an appeal against the judgment, arguing that the court which had delivered it had not been legally constituted. The prosecution likewise submitted that the court had been incorrectly constituted.
42.  By a final judgment of 21 July 2003 the Supreme Court of Justice upheld the appeal, set aside the judgment and ordered the release of the applicant and his co-accused. It held that, in order to ensure greater transparency in the fight against corruption, Law no. 161 of 21 April 2003 had amended, with immediate effect, the procedural provisions set out in Law no. 78/2000 on the prevention, discovery and punishment of acts of corruption (“Law no. 78/2000”). Thus, Article 29 §§ 1 and 2 of Law no. 78/2000 provided that a court ruling at first instance on the offences set out in that Law had to be composed of two judges.
43.  The applicant was not informed of the reasoning of that judgment.
44.  The applicant was released on the same day.
45.  On an unspecified date, the Procurator General of Romania lodged an application with the Supreme Court of Justice to have the final judgment of 21 July 2003 quashed. He submitted that the Supreme Court had committed serious errors of law in its interpretation of the domestic legislation, resulting in an unsatisfactory solution to the matter.
46.  The applicant stated that he had learned only on 24 July 2003, through the media, of the existence of the application to have the judgment quashed, and of the fact that the hearing had been scheduled for 25 July 2003.
47.  At 9.30 a.m. on 25 July 2003 the applicant attended the hearing, accompanied by two lawyers who requested that the case be adjourned on the ground that neither the reasoning of the judgment of 21 July 2003 nor the application to have that judgment quashed had been communicated to the applicant. The Supreme Court of Justice granted this request and, referring to the urgent nature of the case, adjourned the hearing until 12.30 p.m.
48.  When the proceedings resumed the applicant submitted that the final judgment of 21 July 2003 could only be challenged by means of an appeal in the interests of the law and not by an application to have it quashed, and that there were no plausible reasons to justify his pre-trial detention.
49.  By a final judgment of 25 July 2003 the Supreme Court of Justice, sitting as a bench of nine judges, upheld the application, quashed the judgment of 21 July 2003 and, on the merits, dismissed the applicant’s appeal on the ground that the aforementioned judgment had incorrectly interpreted Article 29 §§ 1 and 2 of Law no. 78/2000. It considered that the application of the amendments to Law no. 78/2000 and to the CCP led to the conclusion that the legislature’s intention had been to ensure a single set of rules concerning pre-trial detention, namely that it was to be ordered by a single-judge bench sitting in private, whatever the nature of the offence.
50.  Having regard to the case file, which contained sufficient information to suggest that each of the persons under criminal investigation could have committed the offences with which they had been charged, the Supreme Court of Justice also held that their pre-trial detention was justified.
51.  On 25 July 2003 the applicant was placed in pre-trial detention.
52.  By an interlocutory judgment of 29 June 2004, upheld on 2 July 2004 by the Military Court of Appeal, the territorial Military Court ordered that the applicant be released and replaced his pre-trial detention by an order prohibiting him from leaving the country.
53.  By a judgment of 22 July 2010 the Bucharest Court of Appeal sentenced the applicant to three years’ imprisonment, suspended, for taking bribes (Article 254 § 2 of the Criminal Code taken together with Article 7 of Law no. 78/2000) and harbouring a criminal (Article 264 of the Criminal Code). By the same judgment, M.T. and G.S., whose statements had been produced by the applicant, were sentenced to two years’ and five years’ imprisonment respectively for taking bribes and criminal conspiracy, and taking bribes and harbouring a criminal.
54.   At the request of the Court, on 8 March 2011 the applicant produced the statements of two of his police colleagues, M.T. and G.S., who had also been present in the NAP premises on 16 July 2003. Their statements had been taken by the applicant’s lawyer on 3 March 2011.
55.  M.T.’s statement read as follows:
“At around 9.30 p.m. on 15 July 2003 the duty officer of police section no. 5 informed me by telephone that I was to attend the NAP at 9 a.m. on 16 July 2003, but I was given no additional information. At 8.45 a.m. on 16 July 2003, outside the NAP premises, I met several colleagues including Sorin Creangă. Shortly afterwards, we were invited to enter the building. At the entrance, a gendarme asked us for our identity documents so as to note down our particulars in the logbook. I was taken with my colleagues to a room on the ground floor of the building. Shortly afterwards, a person entered the room and introduced himself as V.D., the military prosecutor. He gave us sheets of paper and pens and asked us to state whether and in what circumstances we had met three people: I.D., S.B. and M.I. He left the room, leaving us alone.
After approximately forty minutes, V.D., the prosecutor, came back into the room and gathered up the statements. [After having read the statements] and noted that some [of us] had responded negatively, he became angry and very tense and threatened to place us in detention with our colleagues who had already been arrested. He then left the room. Four or five armed gendarmes (masked and armed with machine guns and wearing bulletproof vests) burst into the room. One of the gendarmes, who had the rank of officer, asked us to get out our mobile phones and place them on a table next to another gendarme; we were also told that we were authorised to leave the room only if accompanied by a gendarme. That situation lasted until 5 p.m., when we asked for permission to leave the room to purchase food and water. We were asked to collect the money so that a gendarme could go and buy the groceries we had requested.
We were forbidden from contacting our families or anyone on the outside. Until 10 p.m. we were authorised to leave the room to use the toilet only individually and accompanied by an armed gendarme. We were not assisted by lawyers of our own choosing or officially appointed lawyers. At about 10.30 p.m. to 11 p.m., a gendarme took me with Sorin Creangă to an office on the first floor. Present in the office were the prosecutor V.D., the person who had taken us to the NAP premises, another man and two women. The prosecutor suggested to me and to Sorin Creangă that we state that the officers in charge of police section no. 5 were guilty of corruption and were accepting bribes from thieves ... and assured us that if we were to make such a statement no action would be taken against us. Otherwise, we would be arrested. That being so, my colleague Sorin Creangă asked to be assisted by a lawyer of his choosing. The prosecutor replied that the two women present, who were officially appointed lawyers, would assist them. Sorin Creangă refused their assistance and said that he would not make a statement. The prosecutor started to insult him, calling him a peasant, and told him that he would be arrested even if he didn’t make a statement and that he would never see his family again if he didn’t cooperate. Sorin Creangă was then taken from the office.
Approximately forty minutes later, when I was taken to a room in the basement of the building, I saw Sorin Creangă in the corridor, near the door of the prosecutor’s office, being guarded by an armed gendarme. At around 2.30 a.m. on 17 July 2003 Sorin Creangă was taken to the basement room. Shortly afterwards, we got into a windowless vehicle and were taken to Rahova Prison in Bucharest, escorted by gendarmes.
I would point out that I was not allowed any contact with my family and was not allowed to be assisted by a lawyer of my choosing.”
56.  In his statement, S.G. confirmed the truth of M.T.’s statement and described the course of events after 16 July 2003.
57.  At the request of the Court, on 7 March 2011 the Government produced the statement of the prosecutor V.D., responsible for the proceedings brought against the applicant. Dated 17 January 2011, the relevant parts read as follows:
“After having consulted ‘the records’ of the file on the criminal investigation, I wish to clarify the following:
- The following ‘făptuitori’ [‘alleged perpetrators’ or ‘suspects’, at a stage prior to the opening of proceedings against them], officers of police section no. 5, were summoned on the aforementioned date [16 July 2003] by a written request sent to the head of police of the 1st District of Bucharest: G.S., D.M., Sorin Creangă, M.T., C.M., C.O., L.S., S.T., D.A., M.G., S.T., C.B., N.T., C.S., G.R., L.C. and G.D.
- The aforementioned persons were informed that they were to be questioned as ‘făptuitori’ (in the context of the preliminary investigation) in connection with their involvement in the fraudulent extraction of petroleum products from oil pipelines. From the outset, all the police officers summoned verbally denied any involvement in this activity but agreed to make a statement in that regard. Consequently, they were given a ten-point questionnaire to which they responded in writing.
After having obtained their agreement and in the interests of the efficiency of the investigation, I decided that the statements would be made simultaneously in the NAP meeting room because it would have taken several hours to question them individually. I left the room while the statements were being drawn up because, as I was the only prosecutor working on the case, I had other investigative formalities to complete in my office.
- At around 12 noon, when all the officers had finished writing their statements, I re-entered the room and informed them that a criminal investigation had been opened in the case against G.S., D.M., Sorin Creangă, M.T., C.M., C.O., L.S., S.T., D.A. and M.G. I asked those persons to make new statements and to take part in confrontations. I explained to them that they were entitled to be assisted by lawyers of their own choosing and that, for those who did not have lawyers, officially appointed lawyers would be requested from the Bucharest Bar.
Accordingly, the persons wishing to be assisted by a lawyer of their own choosing were permitted to contact their lawyers, and officially appointed lawyers were requested from the Bucharest Bar for the others. The first lawyers arrived at the prosecution headquarters one hour after having been contacted and they were allowed to meet with their clients in the corridors of the building before the hearings and confrontations.
The police officers in respect of whom no criminal investigation had been opened were free to leave the NAP and return to their place of work.
In addition to the above-mentioned ‘făptuitori’, police officers D.M., C.M.E., I.E. and D.C.B were summoned to appear as ‘făptuitori’ at the prosecutor’s office on the same day. The same procedure was followed in respect of those police officers, since they were also the subject of a criminal investigation.
- Before the lawyers for the fourteen police officers under investigation arrived (that is, before 1 p.m.), I completed other investigative formalities in my office such as questioning, re-examination or confrontation, in respect of other persons, for example M.I., S.B., D.C., G.M.M. and G.A., some of whom were already in pre-trial detention.
- A series of witnesses, including M.P., M.B. and D.A.I., were summoned on the same day in the same case.
- At around 1 or 2 p.m. I started questioning the fourteen police officers, as suspects, in the presence of their lawyers. Each suspect made two separate statements (one written on a plain sheet of paper and another on the form designed for suspects), signed by their lawyers.
I recall that none of the fourteen suspects admitted any involvement in the criminal activities at issue, even though their involvement had been established on the basis of evidence gathered earlier.
The fourteen suspects were questioned for at least three to four hours.
- Because several confrontations were needed, the fourteen suspects, assisted by lawyers of their choosing or officially appointed lawyers, participated voluntarily in at least twenty confrontations, during which they were presented with extracts of transcripts of their telephone conversations which had been intercepted and recorded.
The confrontations went on for several hours, until 10 p.m., when a prosecution was brought against the fourteen suspects and an order for their detention was made.
Note: The special nature of the criminal investigation in this case required that repeated questioning and confrontations be carried out on the day in question, that being the only way in which the truth could be established.
Another reason for carrying out all those measures on the same day was the need to ensure the confidentiality of the results of the investigation, given that there was already sound evidence that the suspects and the accused were transmitting information about the investigation with a view to concealing the truth and obstructing the criminal investigation.
- ... as far as I recall, in 2003, just as now, the identity cards of people summoned to attend the prosecutor’s office were not retained at the entrance since the prosecutor had to identify each person before every interview.
- ... the accused Sorin Creangă completed the formalities described above. ... Thus, until 11 a.m. or 12 noon, alongside his colleagues, he drew up his first statement without the prosecutor being present in the room; the room was on the ground floor of the building. Later, Sorin Creangă waited for his lawyer to arrive; after that, he took part in two sets of questioning and various confrontations (the gendarmes were indeed present, but their purpose was to keep order, and no one was guarded individually; anyone could, without being guarded and without having to advise anyone, leave the prosecution service headquarters because no permission was required at the exit).
Personally, as the prosecutor, I do not remember the names of the two police officers who left the prosecution service headquarters during that period without advising anyone but I do remember that they disappeared and could not be found, which is why a general search warrant covering the whole country was issued in respect of them. They were found several days later and brought to the prosecution service, which detained them. They were then brought before the court, which ordered that they be placed in pre-trial detention.
- ... there was not in 2003, nor is there now, a separate entrance for persons under investigation or arrest, nor is there any special room in which such persons could wait to be called into the prosecutor’s office in connection with activities forming part of criminal investigations.
- ... the accused, Sorin Creangă, was summoned on 16 July 2003 by a letter sent by the NAP to the head of police of the 1st District of Bucharest (a copy is attached to this report), that being a legal form of service of a summons under the Code of Criminal Procedure.
Once charged, Sorin Creangă was provided with legal assistance, in accordance with the procedural requirements, given that before a criminal investigation is opened, the law does not require the presence of a lawyer and he did not request the assistance of a lawyer. Furthermore, neither did the other police officers request assistance from a lawyer when drawing up their initial statements.
Sorin Creangă did not specifically ask for permission to leave the NAP headquarters as he was under no obligation to do so and there were no checks on anyone wishing to leave the building without informing the investigating prosecutor.
Sorin Creangă was therefore never specifically told that he could leave the NAP headquarters but he was asked, along with other police officers, to participate in the activities forming part of the criminal investigation and he agreed to do so.
... Sorin Creangă was provided with information and legal assistance as was his entitlement in law; he agreed to participate in activities forming part of the criminal investigation.
Before Sorin Creangă was charged, several other accused, for example S.B., M.I., G.F.P., V.B.D., D.C., G.M.M., G.A.A., F.C., A.G.B., C.U., M.L., M.V., N.B., L.S. and I.D., had admitted committing the offences with which they had been charged and confirmed the offences committed by Sorin Creangă.
- ... I worked alone on this case file on 16 July 2003 and was not assisted by other prosecutors or police officers.”